The Enigma of Felix Frankfurter

THE ENIGMA

OF

FELIX

FRANKFURTER

THE ENIGMA

OF

FELIX

FRANKFURTER

H. N. Hirsch

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Copyright © 2014 by H. N. Hirsch. All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, copying its digital form, recording, or by any information storage and retrieval system, without permission in writing from the current publisher.

Previously published in 1981 by Basic Books, Inc., Publishers, New York (currently part of the Perseus Books Group, Cambridge, Massachusetts), and copyright © 1981 by Basic Books.

Published in the 2014 digital edition by Quid Pro Books, as a Digitally Remastered Book.™ This book is part of the Legal History & Biography Series from Quid Pro Books. It is an authorized and unabridged republication of the original work.

ISBN 978-1-61027-246-9 (ePUB)

ISBN 978-1-61027-256-8 (pbk)

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Publisher’s Cataloging-in-Publication

Hirsch, H. N.

     The enigma of Felix Frankfurter / H. N. Hirsch.

             p. cm. — (Legal history & biography)

     Includes bibliographical references and index.

     ISBN 978-1-61027-111-1 (ebk)

1. Frankfurter, Felix, 1882–1965. 2. Judges—United States—Biography. I. Title. II. Series.

Grateful acknowledgment is made for permission to reprint the following:

Excerpts from Felix Frankfurter Reminisces: Recorded Talks with Dr. Harlan B. Phillips, copyright 1960 by Harlan B. Phillips, by permission of William Morrow and Co.

Excerpts from Roosevelt and Frankfurter: Their Correspondence, 1928–1945, copyright 1967 by Max Freedman, by permission of Little, Brown and Co.

Excerpts from the Columbia Oral History Collection, copyright 1972, 1975 by the Trustees of Columbia University in the City of New York, by permission of the Oral History Research Office.

Excerpts from the correspondence of James F. Byrnes, by permission of Clemson University, Clemson, South Carolina.

Excerpts from the correspondence and diaries of Henry L. Stimson, by permission of Yale University Library.

Excerpts from the correspondence of A. Lawrence Lowell, by permission of Harvard University.

Author photograph inset to About the Author page provided courtesy of Oberlin College, Office of the Dean of Studies. Front cover photograph courtesy of Harvard Law School.

For Lawrence Street

CONTENTS

PREFACE

THIS is an interpretive biography of a much-studied and highly complex man. It does not claim to be exhaustive, but rather explores what I perceive to be unanswered questions concerning both Frankfurter’s behavior and the Supreme Court as a political arena composed of flesh-and-blood human beings.

Frankfurter left us a treasure of words—thousands of letters, scholarly articles and books, a remarkably revealing reminiscence for the Columbia Oral History Collection, and, of course, hundreds of Supreme Court opinions. I have attempted to let him speak for himself as much as possible, so that the reader might discover, as I did, psychological clues and repetitions that are impossible to ignore.* For those who find the use of psychological theory as a tool of interpretation unsettling, I ask only for a suspension of disbelief until the evidence is presented.

•   •   •

My debts are many and a pleasure to acknowledge. This book began at Princeton, and I must first thank my teachers and fellow students there for making my years in graduate school a time of extraordinary fulfillment. The members of my dissertation committee—Walter F. Murphy, Fred Greenstein, Robert C. Tucker, and Sanford Levinson—provided guidance and faith in my abilities in a manner for which I shall always be grateful.

For comments, criticism, encouragement, or aid at different stages, I would like to thank many individuals: Jerold Auerbach, Alan Betten, Jennifer Brown, John Burke, Erika S. Chadbourn, Jack Chapin, Morris L. Cohen, Sidney Davis, Richard and Eleanor Freeman, Susan Goodman, Gerald Gunther, Paul Hefron, Morton Horwitz, J. Woodford Howard, Jr., Pnina Lahav, Irving Lefberg, Alpheus T. Mason, Joel Migdal, Bruce A. Murphy, Yvonne Quinlan, Peter Rofes, Glendon Schubert, Martin Shapiro, James Sharaf, Judith Shklar, Marion Smiley, Henry Steiner, Philippa Strum, Sidney Verba, and David Wigdor. I owe a special and enormous debt to Nancy and Richard Rosenblum. I must also make special mention of Michael Parrish, whose generosity made it possible for me to use quotations from the Frankfurter papers at the Harvard Law School.

For expert counsel at Basic Books, I would like to thank Martin Kessler, Maureen Bischoff, and Julia Strand.

H.N.H.

Cambridge, Massachusetts

September 1, 1980

Footnote

* In reprinting Frankfurter’s correspondence I have retained his own punctuation and spelling, which is, at times, awkward or incorrect. The reader should keep in mind that many of these letters were written by hand and that English was not Frankfurter’s native language. I have inserted sic only where the language is unusually cumbersome.

THE ENIGMA

OF

FELIX

FRANKFURTER

CHAPTER 1

One Man Among Nine

HE WAS perhaps the most influential jurist of the twentieth century. As a professor of law at Harvard, he trained a generation of lawyers and legal scholars who have, in turn, continued to spread his influence so that it remains almost as potent today as during his lifetime. As a justice of the Supreme Court for nearly a quarter of a century, he was a persistent spokesman for one of constitutional law’s most durable theories: judicial self-restraint. He was one of the first academics in American history to play the role of intimate advisor to a president of the United States. Jewish immigrant, child of New York’s Lower East Side, scholar, Ivy League professor, defender of Sacco and Vanzetti, he was labeled everything from radical to liberal to conservative. In every phase of his life, Felix Frankfurter was a phenomenon.

•   •   •

The marble walls of the Supreme Court have been the last edifice to succumb to the weight of psychological realism. The secrecy protecting the Court’s deliberations and the reverential awe usually accorded by the general public to both the Court and its decisions have helped shroud the members of the Court in a mystery almost as black as their robes.¹ Yet the very structure of the Court as a political arena seems strongly to suggest that careful psychological analysis of its members is necessary for a full understanding of the workings of the institution. These nine men must reach a collective decision, and therefore interact and bargain with each other; they enjoy life tenure and are shielded from publicity, and thus are subject to fewer formal demands than is the case with most political roles. Nine men, locked in a conference room with only their notes, their law books, and each other—if ever there was a political forum where personality would have an impact, surely this is it. This need to examine judicial personality seems especially acute for the analysis of periods of transition within the Court, when constitutional precedent gives way to doctrinal confusion. It is during such periods of uncertainty that personality may become a particularly important determinant of judicial outcome.²

Felix Frankfurter was appointed to the Supreme Court in 1939, during just such a period of transition. The Court had renounced its self-assumed role as the protector of the laissez-faire economy of the nineteenth and early twentieth centuries but had not yet adopted its role as the protector of individual rights, which it was to play in the years to come. Frankfurter, as a close friend of Franklin Roosevelt’s and a legal scholar of great repute, was expected by the White House to lead the Court through a period of calm after the stormy Court-packing controversy of the mid-thirties. Calm, however, was hard to produce in a period marked by unsettled doctrine and dynamic judicial personalities. FDR placed on the Court highly complex and extraordinary men—Hugo Black, William O. Douglas, Frank Murphy, Robert H. Jackson, and Felix Frankfurter—whose combined volatility made it impossible to achieve the judicial peace he sought.

Of the men Roosevelt put on the Court, Frankfurter was perhaps the most unusual; the force of both his personality and his philosophy made him the center of the Court’s deliberations during his twenty-four years on the bench. Brought to this country at the age of twelve, he had risen to the summit of the Yankee-dominated, anti-Semitic legal establishment.³ Frankfurter was a vibrant personality: witty, charming, warm, energized, sparkling. He had scores of friends whom he loved and who loved him, including men prominent in politics, the academy, and the legal profession. Few men in the twentieth century have had the devoted loyalty of so many.

But, upon closer examination, there is a darker side to his character as well. Other, less flattering adjectives have been used to describe him: intense, nervous, arrogant, domineering. His correspondence with FDR, published in 1967, reveals a sycophantic flattery;⁴ his more recently published diaries reveal an obsessive concern with the motives of his judicial opponents mixed with high-pitched anger at their behavior and doctrines.⁵

There are, moreover, some puzzling questions about Frankfurter’s judicial performance. When he was appointed to the Court, many expected his long-time commitment to civil liberties to translate into judicial philosophy; instead, Frankfurter demonstrated an austere commitment to judicial self-restraint. Yet despite this credo, Frankfurter willingly extended protection to values he considered essential in a manner hard not to perceive as contradictory or hypocritical. Everything about Frankfurter, in fact, suggests a complex personality at work; there was about him an unmistakable psychological spark.

The central hypothesis of this study is that Frankfurter can only be understood politically if we understand him psychologically, and that we can understand him psychologically as representing a textbook case of a neurotic personality: someone whose self-image is overblown and yet, at the same time, essential to his sense of well-being. Because of delays and difficulties in psychological maturation—because for several crucial years he could not decide who and what he was and thus suffered from severe self-doubt—Frankfurter, I will argue, was led to develop a compensating, idealized self-image in which he exaggerated his political skills and talents. His political style, which he applied throughout his life, resulted from that self-image; it emphasized what he perceived as his ability to handle other people.

The key aspect of Frankfurter’s personality as it affected his public behavior was his attitude toward political opposition. Because his self-image was inflated, and because his psychological peace rested upon that self-image, Frankfurter could not accept serious, sustained opposition in fields he considered his domain of expertise; he reacted to his opponents with vindictive hostility. Unconsciously, such hostility was a projection of his own self-doubt.

Until his appointment to the Supreme Court, Frankfurter had been able to beat his opponents and to dominate every personal and professional situation in which he found himself—the various government bureaus in which he worked, the organizations to which he belonged, the Harvard Law School, the circle of advisors in the Roosevelt White House. When he was appointed to the Court, Frankfurter quite naturally expected to dominate yet another situation. This expectation was buttressed by his many years as a scholar of the law and by the intimate knowledge of the Court he had acquired through two of his mentors, Holmes and Brandeis.

The Supreme Court, however, was an environment unlike the ones in which Frankfurter had triumphed; he was formally committed to sharing power with strong-willed individuals who had ideas of their own. Frankfurter could not lead the Court and, much to his surprise, found himself faced with an opposing bloc. He was thus confronted, late in life, with a serious challenge to his self-image; he reacted in a manner affecting both his relations with his colleagues and the content of his jurisprudence.

In the chapters that follow, I seek to document and substantiate these propositions. In doing so, I draw upon the work of both political scientists and a particular school of psychological theory.

•   •   •

Political scientists and historians have had mixed success applying psychological theory to biography.⁶ Particularly useful, however, has been the concept of style developed in the study of the American presidency. In the formulation of James David Barber,⁷ an individual’s style involves his manner of handling the three things that appear in any political role—words, work, and people, the three broad dimensions of life as an enterprise in which the individual receives from and acts upon his world.⁸ Barber finds that the balance among these three elements of style varies from one individual to the next: One . . . may put most of himself into rhetoric, another may stress close, informal dealing, while still another may devote his energies mainly to study and cogitation.⁹

Several corollary points flow from this concept of style and its application to political biography. The first is that an individual’s style may conflict with the requirements of his office; it is just such a condition that may lie at the base of political failure.¹⁰ The possibility of such misfit between style and role is greatest when an individual comes to a new and demanding office—like the presidency or the Supreme Court—late in life, after a successful career. The White House—or the Court—is the last achievement of a man’s life; it is the final prize, the ultimate confirmation of the self. Men in such positions do not find it easy to change the successful practices and habits of a lifetime. It is thus crucial to examine the fit between an individual’s style and the requirements of his political roles, and whether those requirements change as the individual moves through his career.¹¹

Moreover, the use of the concept of style makes it imperative to examine that point in a subject’s early life at which his style was first formed and applied successfully—his first independent political success.¹² It is at this point that we may find the key to an individual’s later political behavior. This creation of a political style will often be part of an identity crisis in young adulthood;¹³ the individual’s psychological equilibrium may therefore depend upon the creation and successful application of a particular style.

Concern with political style thus leads the biographer inevitably to a concern with the psychological development of the individual, particularly his sense of identity during his social and political maturation. The tools necessary for an understanding of the psychological mechanisms involved in the formation of an individual’s sense of self can be found in the school of thought that has been termed ego psychology. In the theories of psychologists Erik Erikson (who uses the term identity) and Karen Horney (who uses the term self-image) the biographer can find carefully elaborated propositions, based upon clinical evidence, useful in the quest for an accurate psychological assessment of his subject.¹⁴

In his seminal work Erikson has presented a by-now familiar theory concerning the stages of ego growth. At every stage of childhood, adolescence, and young adulthood, Erikson has found, the individual is faced with a form of psychological crisis; the successful resolution of these crises—in their proper sequence—leads to the formation of a firm identity in late adolescence or early adulthood. If an individual becomes stalled at any given point, however, he will not be able to complete the cycle of growth Erikson describes as essential to psychological well-being.

Horney, on the other hand, is concerned with describing the particular type of neurosis that develops when an individual creates for himself an idealized self-image to compensate for low self-esteem. An individual in desperate need of self-confidence, Horney finds, creates it for himself through an act of imagination. He unconsciously exaggerates his talents or skills and then identifies himself with this exaggerated image; he thus compensates for what is in fact a negative self-image. Self-idealization always entails a general self-glorification, Horney writes, and thereby gives the individual the much-needed feeling of significance and of superiority over others.¹⁵ By idealizing his self-image, the individual solves his problems by one daring and fateful act.

When a self-image is created and used for such purposes of compensation,¹⁶ certain psychological consequences inevitably follow. The individual will feel a constant need to prove the validity of his self-image in action, and thereby convince himself that he is who and what he thinks he is. At the same time, his self-image, because essentially false, is never really secure. The individual will thus react with particular vehemence to any challenges to his self-image; such challenges will be psychologically painful because they call forth his self-doubt or self-hatred. Such self-hatred, however, will often be projected or externalized—that is, directed outward, toward those who offer the challenge. Instead of hating himself, the neurotic individual will hate those who challenge him; instead of seeing his own faults, he will see his own faults in others. Thus if an individual’s self-image seems inflated, and if he reacts with particular vehemence to challenges to that self-image, this may be a clue that his self-image is functioning in the neurotic manner Horney describes. A strong public self-image may mask a weak, private one; public aggressiveness may compensate for private insecurity.

The interpretation of Frankfurter to be presented here, resting upon this theoretical framework, is not an attempt to reduce his jurisprudence to the content of his psyche. Although in some cases personality and ideology are posed as mutually exclusive alternatives, in many cases psychological processes and ideological predispositions will in fact reinforce one another. Personality thus becomes, in the language of social scientists, a contributory variable, the strength of which, given its interaction with other variables and the highly delicate nature of psychological evidence, is impossible to measure with mathematical precision. As Alexander George argues, faced with the play of multiple, complexly interacting causal variables, the investigator is bound to have great difficulty in assessing the weight of any given factor. . . . Often the most that can be said is that personality needs or other personality characteristics were among the many contributing factors.¹⁷

Personality needs may explain how an individual’s ideology is translated into specific political acts; they may account for the manner in which the subject interacts with other individuals in his environment; they may explain an inability to adapt personal style to the requirements of an office, role, or situation. Personality most often interacts with ideology; seldom does it completely supplant it. Ideology will often explain the general direction of a subject’s behavior; personality may then explain his precise route, speed, and means of reaching his destination.

Thus, I will not argue that Frankfurter’s personality forced him to take positions on the Supreme Court completely at odds with his pre-Court political ideology; rather, I will argue that his personality led him to harden his stands, to behave in a certain way toward his colleagues, to emphasize certain strands in his philosophy and to exclude others when they were adopted by his enemies, to ignore and rationalize certain contradictions in his legal theory. By systematically examining Frankfurter’s personality, this study seeks to explain certain characteristics of Frankfurter’s behavior that are difficult to account for in a purely ideological explanation—for example, the manner in which he dominated those around him; the extreme anger with which he attacked the motives and abilities of his political opponents; the degree to which he projected his own behavior onto others. The hypotheses offered here do not deny the importance of Frankfurter’s political beliefs; they are not meant as a substitute for traditional ideological analysis, but rather as its complement.

It must be remembered, moreover, that the process by which an ideology is adopted is itself strongly influenced by personality factors. Ideological commitment can provide a powerful sense of self; the value system of respected and admired mentors—who provide crucial approval and acceptance to a young adult—can be easily internalized. As Erikson argues, Whatever else ideology is . . . and whatever transitory or lasting social form it takes . . . it [is] a necessity for the growing ego. . . .¹⁸ Thus an important theme of this study is the degree to which Frankfurter, an immigrant much in need of acceptance, clung to the promise of American democracy and gladly accepted—and sometimes confused—the political values of a remarkable trio of elder mentors: Henry L. Stimson, Louis D. Brandeis, and Oliver Wendell Holmes.

•   •   •

Hanging in the library of the Harvard Law School, where much of this book was written, is a famous portrait of Frankfurter by Gardner Cox. Unlike most portraits of famous men it is done in both charcoal and oil; it is so unusual that one notices it immediately among the many canvases surrounding it. Although the famous Frankfurter face is visible—sharp, almost piercing eyes, prominent nose, bold forehead—the lines are nevertheless somewhat obscure, the tone oblique. Many have commented that the portrait has the look of being unfinished or a rough draft. Much has been written that captures the clear, sharp lines of Frankfurter’s public personality—the man Frankfurter himself wanted history to record. But, like the portrait, this study will seek to explore the shadows and the shades of the man as well.

CHAPTER 2

1900–1919: The

Development of Self-Image

and Political Style

IN 1919 Felix Frankfurter attended the Paris Peace Conference as a representative of the American Zionist Organization headed by his friend and sponsor, Louis D. Brandeis. He was thirty-seven years old. After a long and difficult courtship, he had won the promise of Marion Denman to marry upon his return. He had spent most of his adulthood as a young lawyer in New York and Washington, except for a brief and, in his own mind, tentative period on the faculty of the Harvard Law School before the war. After Paris, he would return to Cambridge to marry and to begin a long tenure at the Law School that would continue until his appointment to the Supreme Court in 1939.

Paris was, for Frankfurter, a triumph. Surrounded by the world’s greatest statesmen, he found himself an effective and admired cog in the machine of world diplomacy. In his letters to Marion from Paris, he speaks of his admiration for the men of power who surround him, men to whom, he repeatedly says, I’m only a boy.¹ He quickly notices that he is making an impression upon these men, a fact that obviously pleases him. He repeatedly talks about going through a fundamental change of attitude, and calls himself a not yet moulded personality. He often says he feels he is entering a new period in his life. And he continually writes Marion about his ability to handle the men around him, a process he calls personalia:

I don’t remember ever having been less free as to time and circumstances than here and now. . . . The job is incapable of standardization or of definite working hours. . . . So much of it is personalia. . . . For instance today I thought I’d have an hour or so at noon . . . instead Weizmann* was in the deep dumps and so I had to pull him out of it. It’s an amazing mixture of personalities that has to be handled, with all sorts of backgrounds and personal prejudices. Much of my work is this kind of mediation—nursing and mediation.²

What emerges clearly from Frankfurter’s often candid letters to Marion from Paris is a self-image, and a style of behavior that results from, and reinforces, that self-image. Frankfurter at this precise moment of his life is a man realizing that he is a success, that he is admired by men of influence and power, and that he can handle people with his charm, wit, and intelligence. In psychological terms, Paris is the culmination of a period of identity formation. This chapter will explore the events and the emotional trail of that process. My underlying hypothesis is that Frankfurter’s period of identity formation was both overly prolonged and torturously difficult, and that he did not form a coherent self-image until his mid-thirties, after a period of intense psychological stress. This delay was due to a fundamental ambiguity in his choice of an identity and the emotional complications attached to that ambiguity.

•   •   •

Frankfurter was born to Jewish parents in Vienna in 1882, the third son in a family of six children. His family had been socially prominent within the isolated Jewish community; for centuries members of his father’s family had been rabbis. Frankfurter’s uncle became the head librarian of the University of Vienna and was a scholar of some repute. Frankfurter’s father, Leopold, prepared for the rabbinate but did not complete his studies; he abandoned the seminary in his final year to marry and to become a businessman. He was not, however, successful in business, and like many of his culture and generation, Leopold Frankfurter decided to abandon Vienna for America. He left Vienna in 1893, and brought the rest of his family to join him the following year.³

Felix was brought to New York City—via steerage—when he was twelve, in August of 1894. He spoke no English when he arrived, although he is reported to have learned the language in six weeks.⁴ Frankfurter remembers himself coming home and saying, This man Laundry must be a very rich man because he has so many stores.⁵ The family settled first in a German-Jewish neighborhood on the Lower East Side of Manhattan. Later, when Leopold prospered a bit, they moved uptown to a better but still modest neighborhood in the East Seventies, a common move for German Jews at the time.⁶ Frankfurter’s father sold linens, using the family apartment as his shop; during the summer he peddled door to door.⁷ The two eldest sons, Fred and Otto, went immediately to work to help support the family; the two youngest sons, Felix and Paul, entered P.S. 25.⁸

It is within this cultural configuration of immigrant Jewry that we must begin to understand Felix Frankfurter. Although this world consisted of several subcultures,⁹ all of them emphasized education as a means of survival and advancement in the New World. On New York’s Lower East Side, young men like Felix enjoyed an environment bursting with a crowded, stimulating, rough-and-tumble intellectuality.

Frankfurter’s reminiscences about his youth provide an important insight into this environment. In this excerpt, Frankfurter identifies a personality trait to which he will call attention throughout his life: his unreflectiveness, his inability to analyze himself.

The neighborhood was one a lot of German-speaking people moved into. . . . I had such a good time, I was so extrovertishly busy, that I wasn’t thrown in upon myself to reflect upon things. Every day was full. . . . Right near where we lived I discovered Cooper Union. . . . Cooper Union was a very important part of my education. There were classes. There were courses over the week—courses in history, in geography, and in the natural sciences. Downstairs was the famous red-chaired hall in which Lincoln made one of his great addresses. In that same hall Friday night there was always some public topic under discussion. . . . The meeting lasted from eight to ten, and at ten o’clock sharp the lights went out. . . . The discussion would continue outside, sort of late night Hyde Park stuff.¹⁰

Frankfurter remembers himself as being more bookish than others in my family, although I came in part from a bookish family.¹¹ He quickly discovered the reading room of Cooper Union, where he sat for hours reading daily newspapers from around the country, developing an interest in politics and current affairs. He was, he proudly recalled, a child prodigy, and, in his remarks, does not hesitate to compare himself to great men.

Just as Fritz Kreisler began to play the violin when he was very young, and Mozart composed when he was four, to make irrelevant comparisons, and John Stuart Mill read Greek when he was four, in me there was no such precocious gift, but early, certainly in the early teens, it became manifest that I was interested in the world of affairs. Why that shouldn’t be as pronounced a predilection as playing the fiddle or reading Greek I don’t know. Anyway, in my case it was. It began very early. . . .¹²

One of Frankfurter’s early heroes was William Jennings Bryan, nominated for the first time when Frankfurter was fourteen. Here was a fellow who could entrance people by the quality of his voice, the beauty of his speech. It was all so fresh and romantic and the voice of hope.¹³ Frankfurter recounts playing hookey from school to attend a Bryan campaign stop in New Jersey; he also remembered that his family was all for McKinley.¹⁴

The available evidence, although somewhat meager, indicates that Frankfurter’s family structure fits squarely within a fairly typical immigrant pattern: weak, unsuccessful, gentle father; strong, dominant mother. Matthew Josephson, one of the earliest and most astute observers of Frankfurter’s character, reported for the New Yorker in 1940 that Frankfurter’s father was remembered by his neighbors as a man of frail health, a dreamy and charitable soul who enjoyed giving baskets of fruit to poorer neighbors. It was Mrs. Frankfurter who was the backbone of the family, ruling its economy. . . .¹⁵

Irving Howe, in his recent study of immigrant Jewry, provides an interpretation of family dynamics that finds the origins of characteristics such as these in the shock of transition to the New World, a shock that was much greater for the father than